I reciprocate your kind prayers for the protection and blessing of the common Father and creator of man, and tender you for yourselves and your religious association, assurances of my high respect & esteem.
-- (signed) Thomas Jefferson, Jan. 1, 1802
Thus ended the only letter of Thomas Jefferson’s so enduring that every atheist, agnostic, and self-proclaimed protector of civil liberties knows a small portion of it by heart. And not only the overtly profane, secular, and worldly among us, but various Unitarian Universalists, United Methodists, Episcopalians, American Baptists, some Lutherans and even a few Mennonites thank their God or god for the lasting result of a few strokes of Jefferson’s presidential pen: the wall of separation between church and state. Responding to the plea of a religious minority fearful of reproach because their state government played religious favorites, Jefferson sought to assure his readers of the limits imposed on the powers of government. Wishing to be kind, Jefferson’s private assurances of high respect and esteem to a few churchmen has evolved today into anything but. What hath Tom wrought?
We are beyond wondering if Jefferson’s literary well-wishing is a fixture of constitutional law. It is, and it got there the same way every other questionable principle and precedent of constitutional law arose: by the intentions (good and bad), of people (good and bad), using and abusing the judiciary to protect, and if possible, establish their legal interests (for better or worse). It’s the American way. Over two hundred years of conflicting intentions have turned the Constitution’s legitimate “religion clauses” into an entanglement of confusing instructions, three-part tests (and tests within tests), each case often confirming the maxim of the unprincipled bench: good decision, bad law.
Virtually everyone agrees that Jefferson’s (and now our) metaphorical wall makes sense: the state should not entangle itself in the business of establishing churches. Of course, the First Amendment Establishment Clause of the Constitution ensured just that in plain language restraining the state from certain actions. In this sense the “wall of separation” is proper and desirable. But the “wall of separation” as practiced differs fundamentally in a way that undermines the First Amendment’s restraining character. Unlike the “shall make no law” restrictive language of the First Amendment, the “wall of separation” is prescriptive and implies something must be separated by someone. Particularly when extended to the realm of religious ideas in the marketplace of ideas, the separation metaphor suffers from an inherent structural flaw: the state is no longer to be restrained; the state is the separator! The state ends up on both sides of the wall, and the passive wall of separation devolves into an active wall of state-mandated segregation, the distinction being one of cause and effect: segregation being the separation for special treatment of individuals from a larger group. In the hands of the judiciary, the noble-sounding “wall of separation between church and state” has become the ignoble “wall of segregation between churches by the state” with the god-like black robes of government sorting the sheep of acceptable religious expression to one side and the goats of unacceptable religious views to the other. We like this one; we don’t like that. Done.
Ironically, it is with respect to Jefferson’s “common Father and creator of man” that the wall of separation can best be seen as a wall of state-mandated and government-endorsed segregation of religious ideas. There are two possible explanations for the existence of man, and both have scientific support and both have religious implications. Either we are necessarily “occurrences” of unintelligent physics and chemistry or we are the result of intelligent manipulation of physics and chemistry. Each explanation has natural, observable, scientific evidential support, and each is, in one form or another, developed as a scientific theory consonant with a religious viewpoint. Naturalistic, unintelligent “bottom up” occurrence of life, for which Darwinism is a leading example, is a central tenet of Religious Humanism and is consistent with the religious beliefs of Buddhism, Taoism, Ethical Culture and various religions of witches, pagans and Earth Religionists. Not surprisingly, the opposite viewpoint, “top down” creation by intelligent design, for which Biblical creationism is one view, is a central tenet of various theistic religions, including Christianity, Judaism, and Islam.
Two scientific explanations of origins, each a tenet of sincere religious beliefs, and both important in the field of origins science. Each explanation also has far-reaching cultural implications, including, not in a small way, for government and law. What is a wall of separation to do? A true wall would separate both views from any entanglement of the state, thereby permitting free inquiry into a topic of great interest. But this is not a true wall; it is but a legal fiction, and a very convenient legal fiction at that for those opposed to all things remotely Christian. The wall of separation-cum-segregation between churches by the state permits the government to separate favored religious ideas (such as materialistic naturalism) for special treatment, the special treatment being state protection from any disfavored challenger. Darwinism, where evidence is interpreted based solely on religious naturalism (or scientific naturalism—there’s no difference), acceptable. Anything else, including Jefferson’s “creator of man”, unacceptable. Done.
Were Thomas Jefferson himself to jump back into public life today, he would not be permitted to suggest to public school science students that the “creator of man” was any other than unguided, purposeless, random variation and natural selection. Jefferson would no doubt be shocked to see his private letter waved like a divinely inspired trump card to compel his own government to censor his view of creation—the very government he helped form to protect certain inalienable rights endowed by this self-same creator. Such truths were then, as now, self-evident. But teaching them today has been declared illegal by court order. An illegal self-evident truth! Only a thoroughly post-modern mind (or brain, to be careful with terms) cannot grasp the stark discontinuity of thought wrought by a one-sided view of religious expression and philosophically-laden science.
One year ago this month a federal judge in a small corner of William Penn’s former colony cemented the latest brick in the wall, perhaps even a load of bricks. In this case the establishment of religion feared by our Founding Fathers was thought to be imminent by a few offended mothers and fathers because a local school board in Dover, Pennsylvania decided to inform their teenage students about one book in the library—a book on the scientific evidence for intelligent design. Such a blatant attempt to educate, literally instructing students to keep an open mind, cannot be tolerated in today’s public school classes, and the ever-vigilant ACLU was shipped in to fight the latest battle on behalf of one group of religious people intolerant of the differently-religious. In a damning, self-defeating admission that should have been dispositive of the case, the plaintiffs (those opposing intelligent design) claimed that intelligent design should not be taught because it forces their children to confront challenges to their religious beliefs at school. We like our religion, we don’t like yours. Start sorting, judge.
All judges face difficult decisions, and all judges make bad decisions. But the aftermath of the Dover litigation has shown that in this case it seems U.S. District Court Judge John E. Jones, III found a chance to push the limits of judicial restraint for a once-in-a-lifetime chance at history-making. Like a present day Clarence Darrow, he recognized the chance for media-driven immortality—the lights, the cameras, the high-powered attorneys, even Charles Darwin’s great-great-grandson was at his trial. Dispensing with subtlety or nuance, in the opinion of Kitzmiller v. Dover Area School District Judge Jones seemed determined to single-handedly win the culture war based on a set of facts suitable only for a skirmish. Knowing his scolding of a few religious folk would make him a darling to those he clearly holds in higher esteem, he took great delight in detailing the “breathtaking inanity” of the local school board. If only he had stopped there he might have retained some judicial dignity; but he felt it necessary to hold as a legal ruling that intelligent design is not science, and apparently lifted large portions of the ACLU briefs to prove it.
Realizing on page 137 of his 139-page opinion that the slip of his judicial activism was showing, the judge awkwardly pulled down his worked-up robe by sternly assuring us “this is manifestly not an activist Court.” As if his self-serving denial of activism were not confirmation enough of, well, his activism, Judge Jones has spent the last year on the sawdust trail doing what judges rarely do: explaining and justifying. Obviously enjoying his new cult following, he assures fawners everywhere how importantly epic was his decision (while patronizing critics with a “a badly needed civics lesson”). To prove beyond doubt that he could not be more pure of heart, he wants us all to know that he really is religious. Really. While the record shows he thought little of his religion prior to becoming a judge or thereafter, progressive reports (from him) since the Kitzmiller opinion have built him up to practical sainthood. Doesn’t he pastor his dear Lutheran church?
The star-struck judge thought he was doing good. And in a way he didn’t anticipate, he may well have. By expounding on issues that go beyond the facts of the case, the Kitzmiller opinion inadvertently succeeded in proving that the wall of separation (which Judge Jones effortlessly invoked as being “mandated” by the Establishment Clause) can easily become a judge’s private tool of religious segregation. Is intelligent design science? Of course it is, but it sure looks like a religious idea. Better put it on the “church” side of the wall. Is Darwinism science? Of course it is, and it does not look (to me) anything like a religious idea (never mind that the complaint from parents was that intelligent design interferes with their kids’ own religious views!). Better put it on the “state” side of the wall.
And that’s the point: in Dover, Pennsylvania the United States government acted to segregate one scientific theory with religious implications (Darwinism) from a competing scientific theory with religious implications (intelligent design). Judge Jones may be pure of heart, but he failed to understand the broader issues he faced, and thereby wielded the wall like a blunt sword, a sword temporarily mightier than Jefferson’s pen, to give government endorsement of one religious expression over another. Thus the Dover lawsuit brought clarity to an issue long stressed by those in the intelligent design movement: Darwinism has clear religious implications and can only be defended by insulating it against any criticism or alternative theory having theistically religious implications. Atheistically religious implications? That’s OK with the state. Atheistic religious humanists have free reign to promulgate their creation beliefs as science, and the differently-religious must march lockstep and be silent against their own conscience. Why? Because now the United States government through the Jones judiciary has mandated religious favoritism in the Dover public schools; religious naturalism is favored and protected, and any denigration of Darwinism, whether scientific or otherwise, is now banned. According to Jones’ opinion in Kitzmiller it is a violation of the United States Constitution to disparage Darwinism, much less challenge it on any ground that is not consistent with naturalism, which is the foundation of religious humanism.
Celebrity Jones fancies himself a protector of liberties, if not the Constitution. But we know protection when we see it, and most Americans would rather enjoy Jefferson’s steady “protection and blessing of the common Father and creator of man” over Judge Jones’ petty protection against a local school board trying, however misguided, to open minds. Most of us would gladly trade Jefferson’s “high respect and esteem” for Judge Jones’ high horse and head of steam. From self-evident truths to government-mandated religious humanism—how far must we go before we see we’ve traded “just powers” for another “long train of abuses and usurpations” that Jefferson once so elegantly rejected. Let the facts be submitted to a candid world: we know Thomas Jefferson, and Judge Jones is no Thomas Jefferson.
Roddy Bullock, an attorney, is the Executive Director of the Intelligent Design Network of Ohio (www.idnetohio.com) and is the author of The Cave Painting: A Parable of Science, available from Access Research Network. Send comments to: firstname.lastname@example.org.
Copyright 2006 Roddy M. Bullock, all rights reserved. Quotes and links permitted with attribution.
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